Appellate attorney Jeff Wald authored an article featured on the cover of the March/April 2025 edition of The Florida Bar Journal. In the article, Wald examines the Supreme Court's shift away from the Warren Court's Trop v. Dulles (1958) "evolving standards of decency" test for the Eighth Amendment, replacing it with a history-and-tradition approach, as seen in City of Grants Pass v. Johnson (2024).

It seems safe to say that the Supreme Court will not rely on Trop to reverse a punishment any time soon (if ever again). Although criminal defendants can — and probably should — continue to make evolving-standards-of-decency arguments before the lower courts, they would be wise also to make history-and-tradition arguments. In those rare cases when the Supreme Court takes up an Eighth Amendment challenge, litigants should dust off their history books and put away those glossy contemporary statutory codes, because it is historical practice — not the combined action of present-day state legislatures — that is likely to sway the Court.

Read the full article here.